Ethics Opinions

Topic:
Responding to online criticism pertaining to the lawyer’s services posted by former client’s relative.

Digest:
A lawyer may not disclose confidential information to respond to online criticism.

Rule Provisions:
1.6(a); 1.6 (b); 1.9 (c)

Facts Presented:
The inquirer, a Nassau County law firm, was retained by a husband in connection with a family offense petition as well as in the divorce commenced by the wife. Within weeks, the husband was arrested for an alleged violation of the stay away order of protection. The inquirer did not handle criminal matters and so advised client. The client became upset; hired another attorney to handle the criminal matter as well as replacing inquirer as to the divorce proceeding. The Inquirer then received a telephone call from an individual identifying himself as the brother of the former client requesting a refund of unearned fees.Inquirer advised the gentleman that no refund was due and provided a breakdown of charges with respect to the divorce proceeding. The “brother” then posted several internet reviews criticizing the Nassau County firm for hiring inquirer and calling inquirer a “thief”.The inquirer wishes to respond to the posting of the criticisms on the Internet by including potential confidential communications with the former client in order to tell “his side”.

Question:
When a lawyer’s former client, or someone ostensibly on their behalf, posts negative comments and criticism of the lawyer on the Internet, may the lawyer post a response on the Internet/Website that tends to rebut the comments and criticisms by including confidential information relating to that former client?

Analysis
The Internet and social media provide numerous sites that ask visitors to state their views of and experience with lawyers, presumably to provide other visitors with information on which to base their choice of counsel. As with our inquirer, he was only partially successful in obtaining the removal of some, but not all, of the critical comments made against him on this particular website.The inquirer believes that certain information about his representation of that client would tend to rebut the posted criticisms. The information in question constitutes “Confidential Information” as defined by Rule 1.6 (a) of the Rules of Professional Conducts (the “Rules”):”confidential information” consists of information gained during or relating to the representation of a client, whatever its sources, that is (a) protected by the attorney- client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential.Under Rule 1.9, Duties to Former Clients, a lawyer shall not:
Rule 1.9(c)
(1) use confidential information of the former client protected by Rule 1.6 to the disadvantage of the former client…; or
(2) reveal confidential information of the former client protected by Rule 1.6….However, there is a “self-defense” exception to the duty of confidentiality set forth in Rule 1.6, which as to former clients is incorporated by Rule 1.9 (c). Rule 1.6 (b) (5) (i) states:
a. A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:

…
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct.
(emphasis added)

Comment [10] to Rule 1.6 provides the following guidance: Where a claim or charge alleges misconduct of the lawyer related to the representation of a current or former client, the lawyer may respond to the extend the lawyer reasonably believes necessary to establish a defense. Such a claim can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client…
(emphasis added)

Such disclosure, if permitted, is limited to the extent that the lawyer reasonably believes the disclosure is necessary to accomplish the purpose of Rule 1.6 (5) (b) (i); wholesale disclosure is not permitted.

The language of the exception, and the comments thereto, suggest that it does not apply to informal complaints such as posting criticisms on the Internet. The key word is “accusation” defined in Black’s Law Dictionary 21 (5th ed. 1979) as a “formal charge against a person to the effect that he is guilty of a punishable offense” or a “charge of wrongdoing, delinquency, or fault” Webster’s third International Dictionary Unabridged 22 (2002). See also, Roy D. Simons, Simon’s New York Rules of Professional Conduct Annotated 230 (2013 ed.) (“An accusation means something more than just casual venting.”) The proposition that an attorney may disclose privileged information if necessary to defend against pending civil or criminal charges appears to have general support in the case law. see cases cited in First Federal Sav. & Loan Asso. v Oppenheim, Appel, Dixon & Co., 110 F.R.D. 557 (S.D.N.Y. 1986) Disclosure of the confidential information can not be used by a lawyer in a wrongful discharge case, Wise v Consol. Edison Co. of N.Y 282 A.D. 2d 335 (1st Dep’t 2001) or in a lawyer’s defamation complaint against his former employee. Eckhaus v Alfa-Laval Inc. 764 F. Supp. 34 (S.D.N.Y. 1991) Further, there may be circumstances in which the material threat of a proceeding would give rise to the right to disclose confidential information. see NYSBA opinion 1032 (10/30/2014) citing N.Y. City 1986-7 (in-house lawyer may disclose confidential information to government prosecution who have identified the lawyer as the subject of a grand jury investigation in which other witnesses have made incriminating statements about the lawyer.)

The New York State Bar Association addressed a similar inquiry in Ethics Opinion 1032, where the inquirer asked to respond to a former client’s critical commentary on a website. As we find here, in 1032, the New York State Bar Association similarly concluded that a lawyer may not disclose a former client’s confidential information solely to respond to a former client’s criticism of the lawyer posted on a lawyer –rating website.

We note that in this inquiry, we are not asked to consider whether the negative website posting constitutes a waiver by the client of the attorney-client privilege and of other kinds of confidentiality under Rule 1.6(a). For our analysis, we have assumed that confidentiality has not been waived. The mere fact that the brother of a former client (or perhaps the former client himself) has posted critical comments on the Internet or a website is insufficient to permit a lawyer to respond to the negative commentary with disclosure of the former client’s confidential Information. Our conclusion properly respects the vital purpose of Rule 1.6(a) in preserving client confidentiality and fostering candor in the private communications between lawyers and clients, and it does not unduly restrict the self-defense exception, Rule 1.6 (b) (5) (i), which applies to a charge of wrongdoing against the attorney, i.e. the “accusation”. Critical but less formal comments on the skills of lawyers and his law firm, whether in the coffee shop, a newspaper account, a blog, or a website, are an inevitable incident of the practice of a public profession, and may even contribute to the body of knowledge available about lawyers for prospective clients seeking legal advice.

Conclusion
A lawyer may not disclose a former client’s confidential information solely to respond to criticism of the lawyer posted on the Internet or a website by a relative of the former client or by the former client himself.

Topic:
Use of altered “form” or boilerplate documents, and the disclosures required with their use.

Digest:
Real Estate practitioner, who routinely uses extensive “form” boilerplate documents as part of practice may not insert different language in place of form text on documentation without running afoul of attorneys duty to act honestly.

Opinion:
Inserting language onto a form with pre-printed text in a manner where the inserted language may be mistaken for pre-printed form language is an ethical violation insofar as it violates attorneys’ duties to act honestly.

Rule Provisions:
Rule 8.4 (c)

Facts Presented:
In the course of a residential real estate transaction the practitioner Inquirer uses form documents (upon which names and other pertinent information is filled into blank spaces), and non-form documents and transmits these to opposing counsel for opposing counsel’s review and comments. In the course of such conduct, the Inquirer has asked if he may transfer out the pre-printed language within the “standard,” boilerplate, or “form” document and exchange in the Inquirer’s own terms.

Question(s):
Whether there is an ethical prohibition to change a preprinted form of a real estate contract and send it to another attorney without drawing ones attention to it?

Analysis
The Inquirer is a real estate practitioner who uses form documents (e.g., contract of sale) along with documents custom to each transaction. Under such circumstances, attorneys have a duty to act diligently on behalf of their clients, and to read all contractual provisions. This affirmative duty on the party receiving “form” documents to be diligent in reviewing documents received does nor, however, mean that the transmitting attorney may insert language into “form” documents surreptitiously.Long gone are the days of type setting and language set in proverbial stone. Rather, the nature and length of such “form” documents, and the high quality of technological / computerized ability to nearly in-discernibly inert differing – and often favorable to one party at the disadvantage of the other – language into “standard” documents makes such alterations rather rudimentary. Hence, it would be impossible (or nearly so) to discern the change in language unless one were to review the document at issue word-for-word and compare it to the “standard” “form” document so often utilized by such practitioners.Accordingly, any such change (and the absence of notice of such change) in some form would open the door for some unscrupulous practitioners to gain an unwarranted advantage by burying a material change in prolific boilerplate language. This would, in the Committee’s opinion open the door to a “war of the forms” wherein each practitioner would race to insert more and more material, yet lesser noticeable alterations into so-called boilerplate “forms.”This kind of guerilla, “Gotcha” legal practice runs afoul of attorneys’ fundamental duties, pursuant to Rule 8.4(c) which prohibits attorneys from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.” The consequences for the profession, as well as for our clients, could not have it any other way: rewarding abilities to furtively insert language into contracts, further eroding the concepts of equity and “meeting of the minds” and rewarding stealthy boilerplate landmines.This is not to say that every alteration of “standard” contracts is unethical. To the contrary, such forms are often altered, with the acknowledgements of all parties. Moreover, if the alteration to the boilerplate is immaterial, negligent or merely bad form then, there may be other problems (such as lack of attorney competence), but not a violation of Rule 8.4(c).

Finally, if the changes are noticeable or if the language insertion is not part of “form,” boilerplate or “standard” documentation, or is otherwise obvious, there is no duty to affirmatively point this out to opposing counsel. The essential principle is that attorneys conduct themselves honestly. Not necessarily with complete transparency, but honestly.

Conclusion
Attorneys may not alter boilerplate “form” language in a non-obvious manner.